Human Rights Commission: "Burden of Proof on Investigative Agencies for Voluntariness of Warrantless Searches"

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[Asia Economy Reporter Lee Jung-yoon] The National Human Rights Commission of Korea (NHRCK) has ruled that when investigative agencies search homes without a warrant but only with the consent of interested parties, it is the responsibility of the investigative agencies to establish procedures to ensure the voluntariness of such consent.

On the 11th, the NHRCK stated that if the voluntariness of consent is disputed, the burden of proof lies with the investigative agency. It recommended that the Commissioner General of the National Police Agency devise measures to secure this voluntariness and disseminate related cases. The petitioner filed a complaint with the NHRCK, stating, "Regarding a lost parcel incident in the officetel where I reside, police officers from the local precinct searched my home without a warrant, took photos without explaining the purpose or obtaining consent, thereby violating my freedom of residence." The respondents claimed that the search and photography were conducted with the petitioner’s consent due to investigative necessity.

However, the NHRCK’s investigation found that the respondents had no evidence or circumstances to prove the petitioner’s consent to the search, and no search report or certificate was prepared after the search. Article 6 of the National Police Agency’s internal regulation, the "Criminal Investigation Rules," stipulates that police investigations are based on voluntary consent, and when seeking consent for voluntary investigation, coercion or any behavior that could be suspected as coercion must not be used. If consent is given voluntarily, searches without a warrant are permitted, but when a police officer conducts a search, a search report must be prepared and a certificate of the search must be issued to the person subject to the search.

The NHRCK stated, "The respondents’ search failed to secure voluntariness and did not meet procedural requirements, exceeding the limits of lawful investigative methods," and added, "This was judged to violate the constitutional principle of due process and infringe upon the freedom and tranquility of residence."

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